Politico
Right’s weapon: Constitutional force
By Ben Smith & Byron Tau
January 29, 2011

The federal lawsuits against last year’s health care overhaul were greeted with eye-rolling and snickers from many conventional legal scholars.

Nobody’s laughing now.

A federal judge in Virginia ruled late last year that a key underpinning of the health care law stretches the Commerce Clause of the U.S. Constitution past the breaking point, while another judge in Florida is expected to rule on Monday. Both cases are likely to proceed toward the Supreme Court.

And the challenges to the health care reform law are just the most visible sign of a broad, national flowering of state efforts to find shelter from the federal government in sometimes-neglected corners of the Constitution that touch conventional political hot buttons such as immigration and gun control, and exotic ones, such as citizenship and currency.

“This has been brewing for decades, and it just needed a catalyst to set it off. The Obama health care package happened to be that catalyst,” said Texas Attorney General Greg Abbott. “It emboldened us to assert states’ rights with regard to an array of different issues in which we are feeling that the federal government has overstepped its bounds.”

The model for this revival is the transformation of the Second Amendment from a hazily interpreted legal backwater to the core of a new gun-rights movement. And while the Constitution is often invoked, and even misquoted, for all manner of conservative causes, perhaps the truest meaning of the new phrase constitutional conservatism is found in the broad, imaginative and sometimes quirky new efforts to hem in the power of the federal government.

The Supremacy Clause, which asserts the primary role of the federal courts and the Constitution, could stymie much of this activity. But it’s all part of a movement that Bruce Ackerman, a liberal constitutional scholar from Yale Law School, told POLITICO constitutes “the most serious challenge” to the current constitutional regime since it took shape in the New Deal and the Civil Rights era.

The new constitutional moves on the right have two distinct factions.

From the top, coastal law professors, members of Congress and state attorneys general have developed cases against health care, environmental and campaign finance regulation designed to appeal to at least five justices of the Supreme Court. Meanwhile, from the bottom up, state legislators and lawyers such as newly elected Kansas Secretary of State Kris Kobach, who helped draft Arizona’s controversial immigration law, are pushing the boundaries of federal-state relations into new frontiers.

“The overwhelming, unifying theme of the tea parties was the restoration of the constitutional order and the balance of state and federal power,” Kobach told POLITICO. “I’ve heard more discussion of the 10th Amendment in the last two years than I had in my proceeding 14 years as a law professor.”

The law professors, many of them at elite universities, and attorneys general view the grass-roots activism with some hesitancy. Virginia Attorney General Ken Cuccinelli, who has filed a motion against the Environmental Protection Agency over carbon regulation, said his office had yet to examine a proposal being studied in Virginia to create an alternative currency.

But the two movements share a new creativity about the Constitution that had previously been confined to corners of the political debate, notably the medical marijuana movement.

“If the health care lawsuit succeeds, that’s going to both change the legal precedent — and it will change people’s perception of the possible,” said UCLA law professor Eugene Volokh.

Randy Barnett, a Georgetown law professor who has helped shape conservatives’ legal strategy against health care reform, said he’s already felt the ground shift.

“A year ago, pretty much all law professors dismissed the argument as frivolous. They don’t dismiss it as frivolous any more,” he said. “The law professors had a failure of imagination.”

And they weren’t the only ones. Then-House Speaker Nancy Pelosi famously brushed off a question about the constitutionality of the mandate during the health care debate.

“People have realized — once they set what might be their policy preferences aside — there are real arguments to contend with that deal with not so much what is the proper role of government, but what is the proper role of this government,” said newly elected Sen. Mike Lee (R-Utah).

And now, imaginations are running wild. Beneath the health care fight and suits such as Cuccinelli’s challenge to EPA regulations are a wild range of attempts to return power to the states.

Atop activists’ reading lists: libertarian historian Thomas Woods’s book, “Nullification: How to Resist Federal Tyranny in the 21st Century.” One Idaho state senator tried to give the book as a gift to Gov. Butch Otter, The Associated Press recently reported, but Otter declined: He already had a copy.

“The book has been passed around,” Woods told POLITICO.

The ideological roots of this movement range from the Jim Crow South to the libertarian fringes of the Republican Party.

The obscure 10th Amendment Center, for instance, has become a clearinghouse for many of these small government-issue areas that are suddenly in vogue, and its founder defies easy political characterization.

“To sum everything up, I would use the word ‘weed.’” said Michael Boldin, founder of the center. “I think this whole idea of states standing up to resist the federal government starts with the medical marijuana movement.”

Boldin’s group has become a hub among small-government groups. It is trying to connect the disparate strands of a freewheeling coalition of anti-federal activists that includes marijuana activists, gun-rights advocates, alternative-currency gurus and immigration hard-liners. Boldin became infamous among small-government types for standing in front of gun-rights supporters and encouraging them to pass gun nullification laws, asking them “Are you as brave as the pot smokers?”

The small-government activists’ ideas are making their way into state legislatures.

Seven states are considering or have passed versions of a “health care freedom act” — a proposal that would, if upheld (which scholars say is vanishingly unlikely) — prevent some or all aspects of President Barack Obama’s signature health care law from applying within state borders.

GOP Texas state Rep. Leo Berman, who introduced his version of the bill in Texas, told POLITICO that his legislation was just one tool in the fight against the health care law.

“My nullification bill here against Obamacare is just another way of showing the president and Congress that we don’t want it,” said Berman. “We think it’s a bad bill.”

States across the country are also preparing to launch a renewed counter-assault on the 14th Amendment’s guarantee of automatic citizenship.

The health care freedom acts are modeled on similar legislation that dealt with gun control, called the firearms freedoms act. The first version of the bill was passed in Montana in 2009 and declared that all firearms manufactured and sold within the state of Montana did not fall under federal gun control laws. Seven states have followed Montana’s lead, while almost two dozen more are considering the proposal. In the latest version of the bill being considered by New Hampshire, it would be a felony for a U.S. attorney to bring gun charges in New Hampshire if they conflict with state law.

Other proposals deal with the hot-button topic of immigration.

The group State Legislators for Legal Immigration is pursuing the idea of a state compact — an agreement among the states that would need congressional approval but not a presidential signature — to circumvent the 14th Amendment’s guarantee of automatic citizenship, which they believe is being misapplied. The group says it has lawmakers in as many as 40 states prepared to introduce the compact legislation.

“A lot of citizens have recognized and expressed interest in having their rights protected from the intrusion of the federal government that’s been continually growing and infringing on the individual liberties of the citizens across the country,” said state Rep. Daryl Metcalfe, a Pennsylvania legislator who formed the group.

And there are even proposals for states to begin minting their own currencies. One Virginia delegate has proposed the state make preparations for the collapse of the Federal Reserve system by developing its own currency.

“We can’t mint coins — but we can require the debt be paid in these things. This is an exploratory effort,” said Virgina lawmaker Bob Marshall, who has introduced the proposal.

“When you’ve got printing presses running amok, state legislators have some responsibility to see if we can address this,” said Marshall.

The interest in devolution isn’t entirely new. A few years ago, liberal city councils and state legislatures, for instance, found ways to dissent from the Iraq war. Some serious scholars see the current activity as a sideshow.

“It’s mainly symbolic,” said Orin Kerr, a law professor at The George Washington University.

But liberals are also beginning to arm themselves for the battle over the meaning of the Constitution.

“Our Constitution is a remarkably progressive document that establishes a strong national government while still preserving a role for the states” said Elizabeth Wydra of the liberal Constitutional Accountability Center, a legal organization created in 2008 to promote defend liberal policies from constitutional assault. “I think that the tea party likes to pick and choose the parts of the constitution that they like — notably the 10th Amendment and the Second Amendment. … It’s important to remember that those enumerated powers are significant and quite broad.”

The future, though, is hazy, and much depends on the Supreme Court, the key mover in the constitutional wars.

“The period we’re going through is testing all these muscles. I don’t think we’ve worked this all out,” said Seth Lipsky, a conservative editor and the author of “The Citizen’s Constitution.” “There are all these sinews. It’s like if you go horseback riding for the first time in five years and you get off the horse and a day later you’ve got muscle pain in muscles you just haven’t used before.”

Conservative officials will keep trying to push the envelope.

The legal experimentation is a mark of “the pendulum swinging back to the center, and maybe across the center in the other way,” said Cuccinelli, the Virginia attorney general. “The worst you can do is lose.”